A Safeguard Against Federal Abuse

In 1830, when South Carolina politicians were arguing for â€œnullificationâ€ of a federal tariff they viewed as unconstitutional, the elderly James Madison penned a public response.

Madison denied that nullificationâ€”in the sense of merely declaring federal law to be inoperativeâ€”was a valid or workable doctrine. He acknowledged that the nullifiers were relying on his 1798 Virginia resolution for support, but he denied that the Virginia resolution had sanctioned nullification. He also acknowledged that when the Virginia resolution and its Kentucky counterpart were submitted to the other states, none of those states supported nullification, and a majority adopted declarations repudiating the doctrine. (See http://www.constitution.org/rf/vr_04.htm.)

Madison then suggested an alternative state-based remedy: â€œan amendment of the Constn. according to a process applicable by the States.â€ Madison was referring to the state-application-and-convention method of amendment, which he personally had helped draft.

Article V of the Constitution provides that all amendments must be ratified by three fourths of the states. Before amendments are ratified, however, they must be formally proposed, either by (1) two thirds of both houses of Congress or (2) a limited-purpose convention that Congress is required to call when demanded by two thirds of state legislatures. The Constitution calls this limited-purpose convention a â€œConvention to Propose Amendments.â€ It also can be called an Article V Convention or an Amendments Convention.

The Founders designed the state-application-and-convention method of proposal as a check on federal overreaching, much as the citizen initiative process checks the legislature in many states.

Perhaps contrary to the Foundersâ€™ expectations, there has never been a Convention to Propose Amendments. There have been several reasons for this, but since about the year 1960 a primary reason has been fear that such an assembly would be a â€œconstitutional conventionâ€ or â€œcon-conâ€ that could prove a â€œrunawayâ€ that takes over the government. (How the convention could do this without control of the armed forces is never explained.)

How justifiable is that fear?

When preparing my book, The Original Constitution, I examined the Founding-Era evidence on how the state-application-and-convention process was designed to work. Subsequently, I reviewed nineteenth and early twentieth-century practices and pronouncements, which largely confirmed the Founding-Era evidence. I compared them with writings, videos, and other media produced by those commenting on the state-application-and-convention process. My initial paper on the subject will be published on September 17 by the Goldwater Institute.

During this research, I found that certain key claims about process are simply not trueâ€”even when made by people who should know better. For example:

* A Convention to Propose Amendments is not a â€œconstitutional conventionâ€ or â€œcon-con.â€ It is a limited-purpose assembly targeted at a specific task. Such meetings were exceedingly common during the Founding Era. They dealt with issues such as trade, currency, and state constitutional amendments. In fact, the Constitution actually authorizes three kinds of limited-purpose conventions, of which a Convention to Propose Amendments is only one.

* The Founders created the state-application-and-convention process primarily as a way to rectify federal abuses of power. The Founders recognized that clarifying and corrective amendments might become necessary even when the proper reading of the document seemed clear. The Ninth, Tenth, and Eleventh Amendments all are examples of clarifying and corrective amendments.

* Some have claimed that the procedure governing the state-application-and-convention process is unknown or unknowable. Actually, the Founding-Era evidence, confirmed by the pronouncements and practices over the ensuing 150 years, offers a great deal of guidance. For example, the Constitution permits states applying for a convention to limit its scope to particular subject matter. (Nearly all the Founders addressing the issue expected the states to so limit it.) If a convention suggested a measure outside its call, it would have no legal effect. It would be a suggestion for the future only, and not eligible for state ratification.

* Similarly, the evidence shows that (1) the convention is an agent of the state legislatures, but (2) the convention, not the states, actually drafts the amendments; (3) the states select their own delegates in whatever manner they choose consistent with the Fourteenth Amendment; (4) the convention sets its own rules, including its own voting rules, with an initial rule of â€œone-state-one-vote;â€ and (5) the convention may not alter the mode of ratification or do anything else other than propose amendments for state consideration.

I also learned the background behind the assertion that a Convention to Propose Amendments is a â€œcon-conâ€ that could result in a â€œrunaway.â€ The charge apparently originated among convention opponents in the nineteenth century, who rested their case on the (substantially false) belief that the 1787 constitutional convention had been a â€œrunaway.â€ Their argument did not gain much traction at the time, but in the 1960s a group of left-wing law professors and judges promoted the charge to frighten people away from trying to reverse activist Supreme Court decisions.

Among those making this argument, most actually had done little or no published research on the subject. The product of those who had published was quite unsatisfactory, suffering from much political bias and little solid evidence: quotations ripped out of context, ignorance of eighteenth-century law, language, and practice; and mutual citation to each other’s writings.

As just noted, most of the 1960s popularizers of the â€œrunawayâ€ theory were solidly left-of-center. Their goal was to derail efforts to adopt conservative constitutional amendments. By a delicious irony of history, however, some on the right have adopted their arguments, often citing people those groups would oppose strongly in any other context.

Along the same lines: I recently saw a video asserting that the â€œunlimited conventionâ€ scenario is accepted by the overwhelming majority of legal scholars. But if this was ever true, it has not been true for over a quarter of a century. Most recent studies of the subject agree that an Article V convention is limited by the scope of its call.

In sum: The Article V amendment process is feasible, sensible, and a lot more safe than continuing down the road we are currently traveling. The Founders gave it to us as a safeguard against federal abuse. The current situation is precisely the kind of crisis for which it was designed.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitutionâ€™s original meaning have been published or cited by many top law journals. (See www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Coloradoâ€™s Independence Institute.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been repeatedly cited in U.S. Supreme Court opinions and published or cited by many top law journals (See: www.constitution.i2i.org/about/) He co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). He was a law professor for 25 years and taught constitutional law and related courses. He is the Senior Fellow in Constitutional Jurisprudence at Colorado's Independence Institute.

This author seems to be suggesting that nullification is not a “valid or workable doctrine” without any explanation why this is the case other than to attribute this belief to Madison. He states that a limited “con-con” is “a lot more safe than continuing down the road we are currently traveling” without any explanation of his fears about nullification.

The claim that state nullification is not valid or workable is carefully refuted by Tom Woods and many others.

Further, the author of this article makes extremely short-shrift of the ‘runaway convention’ argument. For example, he simply says that the notion that the original Constitutional Convention was a ‘runaway’ is “substantially false” and is based on a plethora of mistakes with no specific citation to support this claim except to claim that the idea was used by the dreaded ‘left wing’ for ‘nefarious’ purposes in the ’60’s.

To reassure us, he says recent studies show most “legal scholars” today agree that a ‘con-con’ is limited to its call. To me, the fact that most legal scholars today believe something is a pretty strong indictment of that belief.

I guess we’ll have to wait until 9-17-2010 to read the full paper and find out more about exactly why this author opposes nullification and supports a limited ‘con-con.’ To me, however, the concern that a ‘con-con’ could be used to fundamentally alter the ideals of the original Constitution seems legitimate and should not be taken lightly.

Whether the original ‘con-con’ was a runaway or not, I do not trust the CURRENT batch of losers in charge of our country and suspect they would take ANY opportunity to alter the core beliefs upon which it was founded. Given the track record of the federal government in general and the US Supreme Court in particular, for example, it seems dangerously naive to dismiss this concern. How did we get to this point today if not for power grabs by the feds at every opportunity?

I believe nullification is an appropriate response to the out-of-control federal government and is an appropriate way to try to reverse the mess we’ve made of our ‘grand experiment.’

This author seems to be suggesting that nullification is not a "valid or workable doctrine" without any explanation why this is the case other than to attribute this belief to Madison. He states that a limited 'con-con' is "a lot more safe than continuing down the road we are currently traveling" without any explanation of his fears about nullification.

The claim that state nullification is not valid or workable is carefully refuted by Tom Woods and many others.

Further, the author of this article makes extremely short-shrift of the 'runaway convention' argument. For example, he simply says that the notion that the original Constitutional Convention was a 'runaway' is "substantially false" and is based on a plethora of mistakes with no specific citation to support this claim except to argue that the idea was used by the dreaded 'left wing.'

Also, he says recent studies show most "legal scholars" today agree that a 'con-con' is limited to its call. To me, the fact that most legal scholars today believe something is a pretty strong indictment of that belief.

I guess we'll have to wait until 9-17-2010 to read the full paper and find out more about exactly why this author opposes nullification and supports a limited 'con-con.' To me, however, the concern that a 'con-con' could be used to fundamentally alter the ideals of the original Constitution seems legitimate and should not be taken lightly.

Whether the original 'con-con' was a runaway or not, I do not trust the CURRENT batch of losers in charge of our country and suspect they would take ANY opportunity to alter the core beliefs upon which it was founded. Given the track record of the federal government, it seems dangerously naive to dismiss this concern. How did we get to this point today if not for the constant power grabs by the feds at every opportunity? What better opportunity than a ‘con-con’?

Considering the hierarchy of our country's original design (People first, then States, lastly Feds), I believe nullification by the States is an appropriate response to the out-of-control federal government and is an appropriate way to try to reverse the mess we've made of our 'grand experiment.'

i think he's saying Madison called it an unworkable doctrine. problem, though, is that relying on Madison on either side of this argument is idiotic. he may have been the worst flip-flopper this country ever saw.

on top of it, in 1836 Madison said that amendments were just one possible response, not the only one. In fact, he recommended impeachment before even trying an amendment. Why isn't that being recommended here if Madison's advice is what we're following?

Madison also made the claim that year that "nullification" was not even part of Kentucky's resolutions in 1798. But, anyone can read those resolutions and easily find the word with a control-F. Maybe Madison was a little senile or politically motivated those days?

finally, to make the claim that Madison's advice as an old man in 1836 was the advice of "The founders" is misleading, at best.

I think the point of the article was to disparage the idea of nullification and promote the idea of a limited con-con as a better alternative. I consider that view to be naive. Nullification is actually the 'safer' route.

Senator Coburn and I had a short one-on-one discussion about this issue just a few days ago following his town hall in this area. Senator Coburn thought my idea to clarify the meaning of the fourteenth amendment for our generations was a "stupid idea." Essentially, he talked a good game during the meeting, but when someone offered a viable constitutionally based corrective to federal usurpation of reserved powers, he wanted no part of it. But as Natelson makes abundantly clear in the article, we don't need the federal Congress to get this ball rolling.

My idea involves correcting the way the federal courts apply the provisions of the fourteenth amendment to establish an absolute federal tyranny over these States. I have it already written.

The last time nullification was advanced in this country was in the 1860s. It cost 600,000 American lives. Can anyone who says its the "safer" route actually show that with as many as 61 million lives possibly lost today, if the proportion of population died today, this is "safer"? Better the convention. See http://www.foavc.org.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been repeatedly cited in U.S. Supreme Court opinions and published or cited by many top law journals (See: www.constitution.i2i.org/about/) He co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). He was a law professor for 25 years and taught constitutional law and related courses. He is the Senior Fellow in Constitutional Jurisprudence at Colorado's Independence Institute.